LEGAL AID COMMISSION

Senior elders’ allowance

The media reported that the authorities have decided to pay a universal stipend to all the senior elders over 80 years of age.

This is a welcome response to a request for a universal pension of for elders continuously advocated by the National Council for Elders and the Help Age International. Such Senior Citizens endowment programs are implemented even by comparatively low-income countries like Nepal.

The governments decision will benefit over 500,000 frail elders, majority of whom are women dependents.

Sri Lanka is internationally considered one of the fastest aging countries in the world. International research studies supported by the World Bank, Helpage International and our own National Council of Elders have confirmed this unique demographic trend.

The whole world is aging as it had never happened before in human history. At the beginning of the 20th century, the average life span of a human being was 47 years. At present the average age reaches 77 years which is an increase of 30 years in a century. The phenomenon is projected to increase and many senior elders, specially the women are expected to reach an average mortal age of 85 years. Dawn of a geriatric era is inevitable with indelible repercussions on human life.

Aging statistics of Sri Lanka are unreliable and there are only predictions. The last national census of the country was conducted 10 years ago which too was a partial census with out including the Northern and parts of the Eastern Provinces.

The refugee exodus to India and western countries have taken 1.5 million Sri Lankans out of the country and an estimated 2.5 million migrant workers have contributed to deplete the population in the country.

In short, we have no scientific and reliable study of the state of population of this country. Every population Seminar spews out new statistics which have never been demographically tested.

According to working figure accepted by the National Council of Elders (Act 10 of 2006) nearly 2.4 million of our 20 million population are over 60 years of age. Sri Lanka has remained one of the fastest aging countries in the world. The National Council of Elders is the authority empowered by law to make proposals to the rulers to develop strategies and harness resources to handle our impending Age quake.

S. S.Wijeratne

[ Questions and Answers]

Dividing property

Question: My husband died in an accident without leaving a last will. He has land under his name and we have a child, but his parents say I am not to acquire any land. Could you kindly explain how a deceased’s property is divided under the Common Law? An early reply to my question would be greatly appreciated.

- Kamal

Maharagama

Answer: Under the Common Law a deceased’s property could be divided in the following manner:-

If the deceased was married 1/2 of the property would be granted to the spouse and the other 1/2 to be equally divided among his children. If they haven’t any children 1/2 to the spouse and the other 1/2 to parents of the deceased in equal shares. If the parents are not alive equal shares to the deceased’s brothers and sisters. If only one parent is living 1/2 of 1/2 would be granted to the living parent and other 1/2 of 1/2 would be granted to brothers and sisters of the deceased equally.

Divorce

Question: I have decided to divorce my wife. We do not have any children. Can we mutually get the divorce? Please advise us.

By mail

Answer: If you are keen to file a divorce action, you must prove one of the following grounds under the General Marriage Ordinance:-

(a) Adultery subsequent to marriage

(b) Malicious desertion

(c) Incurable impotency at the time of such marriage

You can institute a divorce action in the particular jurisdiction where you reside. Apart from the divorce action you can ask for permanent alimony (compensation), alimony and costs of litigation.

Abortion

Question: Please let me know whether abortion is legalized in Sri Lanka?

Samantha

Kirulapane

Answer: No, abortion is not legal in Sri Lanka. Under the Penal Code it is a criminal offence. The Penal Code provisions are defined as the causing of miscarriage, or injuries to unborn children, as follows:

Sections

303 Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

304 Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.

305 Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.

Pension life certificate

Question: My nephew is a Sri Lankan government pensioner. He is presently residing with his family in India to educate his child.

Every pensioner is required to sign a life certificate at the beginning of the year and send it to the Divisional Secretary.

The format of the life certificate varies. His life certificate requires attestation by the Gramasevaka Niladhari. I am also a pensioner. My life certificate provides for Justice of Peace or Attorney-at-Law to attest.

He was able to get his certificate attested by Gramasevaka Niladhari in 2008. The Gramasevaka Niladhari is not prepared to attest it this year. He will not get his pension this year without the life certificate attested by the Gramasevaka Niladhari.

Can you please him to get his pension.

Ranga

Sent by fax

Answer: We discussed your matter with the Pension Director, Department of Pensions. According to him your pension has stopped due to not informing the department and leaving the country. It is advisable to contact him via letter, or you can come to us with the request letter or email and we will help you to settle the matter.

Validity of Sri Lankan passport

Question: I hope to travel to a few countries in the near future and I have already obtained a Sri Lankan passport. As such, please let me know whether a Sri Lankan passport is valid for travel to any country. Your kind reply would be greatly appreciated.

Chandima

By mail

Answer: A passport is valid for travel only to those countries for which a specific endorsement has been made on page 4 of the passport. Sri Lankan passports may be made valid for travel to any country in the world except those countries to which travel may be specifically restricted by an endorsement on page 4.

General conditions regarding the issue of a passport having been satisfied, a passport may, as a general rule, be issued to any country.

If an applicant wishes to travel to any other country or countries, for which travel is not specifically restricted by instructions, those additional countries can be added to the above normal endorsement. The endorsement of additional countries should be made only on the issuing authority being satisfied that the holder has good reason for visiting them.

An endorsement covering a large number of countries should not, as a rule, be given where the issuing authority is not satisfied that the holder is likely to travel very widely and actually needs such an endorsement or where the issuing authority has reasonable grounds to consider that some measure of restraint upon the movements of the holder is desirable.

The Issuing authority may, at his discretion, endorse a passport specifically for the countries to which the applicant contemplates immediate travel, as a general rule.

A passport should not be endorsed valid for countries which are in a state or war or where any unrest prevails or which have not been officially recognized by the government of Sri Lanka.

Appeal regarding land case

Question: There was a land case which was settled in my brother’s favour and the appeal was made by the defendant. Please note that the judgment was given in year 2003 and the appeal was appointed in the same year (within the appealable period). Eight years have passed since then. I now wish to clarify -

(a) When will this case be heard?

(b) Will my brother be informed or the lawyer who appeared for my brother or both?

(c) If the lawyer who appeared for my brother is not in a position to appear this time what should he do?

I await your kind reply

M. Kottage

Kaduwela

Answer: The answers to your questions are given below:-

(a) Kindly check from the Registrar, Court of Appeal regarding the 2003 final appeals.

(b) Your brother’s registered attorney and your brother will be informed regarding the hearing of the final appeal application.

(c) If your brother’s lawyer is not in a position to appear on his behalf, he can retain any other suitable lawyer as he wish.

Forensic psychiatry

Question: Please let me know what is Forensic Psychiatry and please explain it’s criminal responsibility?

Rushda

Colombo

Answer: Forensic psychiatry deals with legal aspects of those who appear to suffer from mental illness. This interaction between psychiatry and the law is necessary for several reasons.

1. The mentally ill may commit offence due to their mental illness.

2. Those who are not mentally ill may claim to be mentally ill after committing an offence.

3. The mentally ill may not consent to being treated and may pose a risk to their/others safety.

4. The mentally ill may not be able to manage their finance and other matters appropriately.

5. Persons may claim to be mentally ill after being the victim of an offence against them.

6. Persons claiming to be mentally ill may seek relief their occupations.

Criminal responsibility

All persons are responsible for their actions and ignorance of the law is not a defence. However, sections 75-78 of the penal code grants exemptions under certain circumstances:

Section 75: child below eight years

Section 76: child over eight years but below 12 years, ‘who has not attained sufficient maturity to judge the consequences of his conduct.

Section 77: ‘Nothing is an offence which is done by a person, who at the time of doing it, by reason of unsoundness of mind, is

a) incapable of knowing the nature of the act, or b) incapable of knowing that he is doing something contrary to the Law.

Section 78: intoxication, provided it is without his knowledge or against his will.

Role of expert witness

Question: In cases of courts lawyers use the court witnesses to argue the cases, what does expert witness mean and please explain the role of an expert witness?

By mail

Answer: An expert witness is a witness who gives evidence by expressing an opinion based on his academic and professional expertise. The role of the expert is to provide rational and scientific evidence (facts) and interpretation of that evidence (opinions) so that a judge or jury could come to a decision regarding the matter at hand.

Roles of an expert witness

The many roles of an expert may include educating counsel, evaluating and assisting in the development of a case, providing written and oral statements in detail, testing or demonstrating evidence and obtaining the services of other experts if required.

The adversarial system requires ‘proof beyond reasonable doubt’. However, the evidence may only present a ‘balance of probabilities’.

Giving evidence in court

a) Pretrial preparation - would include reviewing the case notes, and reading relevant books, journals around the topic. Discussion with counsel before the trial and suggestion of strengths and limitations of available evidence is useful to enable the trial to focus on the relevant key areas.

Case illustrations and discussion

The medical officer’s history taking, examination and investigations displayed in the report will comprise the facts of the case. His expertise in interpretation of the facts based on the evidence available will help to formulate the opinions of the case.

Case illustrations and discussion

b) Appropriate court behaviour would include being punctual, being prepared with the relevant documents, answering judge and counsel courteously. Careful consideration of the questions and answering where necessary with explanations helps the evidence to be clearly understood. Being limited in expressing opinions outside one’s expertise is important as well as admitting to ignorance or error in the report on a certain matter.

The ability to authenticate opinions by referral to the literature when required. And presenting evidence in an honest, impartial objective way helps the judge to come to a decision regarding the medical evidence. The testimony of an expert medical witness should be founded on a thorough and critical review of the pertinent medical and scientific facts, available data, and relevant literature. The expert should specify whether his or her opinion is based on personal experience, specific reference to peer-reviewed literature, or generally, accepted professional opinion in the specialty field.

c) Post trial reflection on the case

Reflection on each case by documenting the questions asked and how they were answered or why they were not answered enables better preparation for a similar case in the future. In this way, the collection of additional facts at the pre-trial phase could be done.

The court is not bound to accept the opinion expressed by the expert. The court would need to evaluate the expert’s evidence of his/her credibility by the use of certain criteria such as.

a) Test of promptness (or belatedness)- the necessity of promptly making contemporaneous notes

b) Test of consistency of evidence - should be maintained

c) Test of probability or improbability of the situation

d) The demeanor of the witness and confidence in expressing opinion

e) The partiality/impartiality of the witness

Grounds to arrest person

Question: My nephew who is 27 was arrested by the police last week for no reason at all. I want to find out on what grounds can a person be arrested. Kindly let me know through your valuable Daily News Legal Aid Page.

P. Shanthi Kumar

Colombo 15

Answer: A person may be arrested on the following grounds:-

(a) he is suspected of having committed a criminal offence; (b) he has failed to appear in court in response to summons; (c) he has been proclaimed as an offender;

(d) he has escaped or attempted to escape from lawful custody;

(e) he has obstructed a peace officer (a peace officer includes a police officer and a Grama Seva Niladhari who has been authorized in writing to carry out police functions) in the execution of his duty;

(f) he is reasonably suspected of being a deserter from the armed forces;

(g) he is found trying to conceal his presence in circumstances which give reason to believe that he is about to commit a cognizable offence.

(h) he is found to have housebreaking implements in his possession without lawful excuse;

(i) he is reasonably suspected of having committed an act abroad which would be an offence in Sri Lanka and for which he could be detained and extradited.

Further an arrested person should be told the reason for his arrest. If the arrest is by warrant he should be shown the warrant as soon as possible. A warrant must be in writing and signed by a judge.

Development activities in coastal zones

Question: My friend has already bought a land in a coastal area. He now hopes to do a hotel project using this land. I want to clarify the following -

(a) Before he starts his project, is it necessary to get the permit from the Coast Conservation Department?

(b) How do they define the coastal zone when issuing such permits?

(c) If the construction in the coastal zone is not legal will the unauthorized constructions be removed?

By fax

Answer: (a) The answer is ‘Yes’. In terms of Section 14 of the Coast Conservation Act No. 57 of 1981 no person shall engage in any development activity other than a prescribed development activity within the Coastal Zone except under the authority of a permit issued in that behalf by the Director, Coast Conservation Department.

If you need to build a house, tourist hotel, commercial building or otherwise carry out any development activity within the coastal zone, you may need a Coast Conservation permit issued by the Director, Coast Conservation Department. (CCD). Under this Act the new guidelines, regulations and procedures have been introduced after the tsunami in December 2004. Two types of permits are issued for development activities within the coastal zone.

A permit issued by the CCD Director referred to as a Major Permit. A permit issued by the Divisional Secretary on behalf of Director is referred as Minor Permit. If you need any further particulars regarding permit procedure please contact:

Coast Conservation Department
New Secretariat
Maligawatta, Colombo - 10
Sri Lanka
Fax: 2438005
Tel: 2449754
Web site: www.ccd.gov.lk

(b) Coastal Zone’ is defined in the Coast Conservation Act as “the area lying within a limit of three hundred metres landward of the Mean High water Line and a limit of two kilometres seaward of the mean Low Water Line and in the case of rivers, streams lagoons or any other body of water connected to the sea either permanently or periodically, the landward boundary shall extend to a limit of two kilometres measured perpendicular to the straight base line drawn between the natural entrance points identified by the mean low water line thereof and shall include waters of such rivers, streams, and lagoons or any other body of water so connected to the sea”.

Necessary actions will be taken to remove unauthorized constructions. All development activities within the coastal zone which are constructed without obtaining a permit from the Coast Conservation Department is considered as an unauthorized construction and in compliance with the provisions of the Coast Conservation Act, Coast Conservation Department will take necessary action to remove the unauthorized construction. While the development activity is in progress according to a permit issued by the CCD, officers will inspect as to whether such activity conforms to the conditions laid down in the permit. In case if the said conditions have been violated, immediate action will be taken to cancel the permit and legal action will follow.

[ICLP-CCC certificate course]

The Institute for the Development of Commercial Law and Practice (ICLP) jointly with the Ceylon Chamber of Commerce (CCC) launched a three-month certificate course on Shipping Law and Practice in January 2011.

The results of the first batch of the course was released recently by the Board of Examiners, Justice P.A. Ratnayake, S.S. Wijeratne, (Course Director), K. Kanag Isvaran PC, Dr Harsha Cabral PC, Chandaka Jayasundara, Dr Malika Gunasekere, Anoma Ranasinghe, Capt. Palitha de Lanerrolle, Lalith Witanchchi, Vijith de Costa, S.M. Niyas, Sarath Gunawardena, Nilam Jumat, Uthpala Jayaratne at the ICLP Arbitration Centre.

Lakmali Jayaweera, (Apprentice) topped the Batch securing a Merit Pass while Nirusha Ranjitkumar (Attorney-at-Law - Nithya Partners), Shayanga Fernando (Attorney-at-Law - Nithya Partners), Sachintha Kahandage (Apprentice), Wishwa Wijesuriya (Apprentice), Wasana Silva (Apprentice), Hasitha Abeysundara (Apprentice), Rehan Almeida (Attorney-at-Law) also obtained Merit Passes.

Melwin Herath, (M/s Anna Marine Pvt Ltd.) Jivan Goonatilake, (D.L. & F de Saram) Ilanko Kathiravelupillai (Seylan Bank), Rezwan Rasheed, (BAZ Logistics) Manori Mallikarachchi,(Dockyard PLC), Ashvinee Kariyawasam (Marine Prevention Pollution Authority), Nadeera Gunawardena, (Sri Lanka Insurance) Nadeesh De Silva (Apprentice), Vajira Ratnayeke (Dockyard PLC), Chaamila Gunasinghe (Attorney-at-Law) and Shaheema Fazly (ICLP Arbiration Centre) obtained Passes.

Contact person: Programme Officer Shaheema Fazly

Tel 2346163/4

New Legal Centres 

The Legal Aid Commission, the Statutory provider of access to justice to deserving Sri Lankans will be opening four new Legal Aid Centres bringing the total number of Legal Aid Commission centres in the country to 66.

The new centres scheduled to be opened in Northern Province would be in the Point Pedro Court premises and in Potuvil in the Eastern Province. These two centres would be supported by the Access to Justice programme of the UNDP.

The Justice Ministry and judicial Reforms have constructed Legal Aid officers in the Kekirawa and Wariyapola court premises and the Commission is making arrangements to establish two new centres to cover the new court Jurisdictions.

The new Legal Aid Centres, while providing free Legal Advice to the Community will provide court representation to the poor.